The Crown’s understanding of customary interests and associations
The following section ‘The Crown’s understanding of customary interests and associations’ replaces the ‘Overlapping interests’ content on pages 53, 54 and 55 of the Red Book 2018 edition PDF.
- The Crown understands ‘customary interests’ as the expression of the traditional multi-dimensional relationship of a claimant group to an area or natural resource in accordance with their tikanga. Examples of physical markers or natural resources cited by claimant groups when describing their customary interests may include tupuna maunga, awa, pā, marae and kāinga, nōhanga, mahinga kai, urupā or other wāhi tapu.
- The Crown understands ‘association’ as the spiritual, cultural, historical and / or traditional relationship expressed by a claimant group to a site, area or natural resource. Such associations might exist as a result of a group’s customary interests and / or because a site is significant in the history of the claimant group. For example, it might be the site of a significant event that has ongoing importance. A site might also relate directly to an historical Crown act or omission for which a grievance is held.
- The Crown acknowledges that customary interests and associations are complex, and there are different kinds and narratives of customary interests and associations articulated by groups. For instance, the Crown recognises that customary interests are not always actively maintained by groups. Groups sometimes have different views about whether the interests have been extinguished. It is not for the Crown to answer these questions.
- The Crown considers the nature of interests and associations to be relevant to determining redress that is fair and appropriate. The Crown recognises that multiple groups may have interests or associations in the same area although the nature of these interests and associations may be different.
- Evidence of customary interests and associations from multiple sources, including information provided by groups or independent experts, historical documents and Tribunal reports help the Crown to understand the existence and nature of overlapping customary interests and associations.
- Where interests and associations are disputed by overlapping groups, the Crown does not consider that it can or should determine or adjudicate whether a group has a predominant interest or any exclusive status in an area. The Crown’s role is to support groups to address these issues themselves. The Crown’s approach to redress will be informed by the dialogue between groups on these issues. Where groups are unable to reach agreement about how to address overlapping interests, the Crown may need to decide on the redress it is willing to offer the claimant group.
Customary interests or associations demonstrated by the claimant group is one factor informing the Crown’s decision to offer redress (as identified in the sections ‘How do overlapping interests influence the redress offered by the Crown?’, ‘Consideration of exclusive and non-exclusive cultural redress’ and ‘Consideration of exclusive commercial redress’). - It is acknowledged however, that overlapping groups may see the Crown’s offer of redress as a statement or recognition of mana whenua. This is not the purpose or the effect of Treaty settlements. Although the Crown will take into account groups’ statements about their interests, the settlement process is not intended to establish or recognise boundaries between groups or make determinations of mana whenua.
The Waitangi Tribunal has discussed the nature of Māori geographical boundaries in its Ngāti Awa Raupatu Report 1999 (page 133). In that report, the Tribunal stated ‘the essence of Māori existence was founded not upon political boundaries, which serve to divide, but upon whakapapa or genealogical ties, which serve to unite or bind. The principle was not that of exclusivity but that of associations. Indeed, the formulation of dividing lines was usually a last resort’.
The Tribunal applied this approach when considering overlapping claims between Ngāti Maniapoto and Ngāti Tama in the Ngāti Maniapoto / Ngāti Tama Settlement Cross-claims Report 2001 (page 26).
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